On June 25, 1997, Examiner Christopher Honeyman issued Findings of Fact,
Conclusion of
Law and Order with Accompanying Memorandum in the above matter wherein he concluded
that
Respondent Washburn Public Schools had committed prohibited practices within the meaning
of
Secs. 111.70(3)(a)1 and 4, Stats., by unilaterally modifying employe wages and conditions of
employment. He ordered Respondent to cease and desist from such conduct and to take
certain
affirmative action to remedy the violations found.

Respondent timely filed a petition with the Wisconsin Employment Relations
Commission
seeking review of the Examiner's decision pursuant to Secs. 111.70(4)(a) and 111.07(5),
Stats. The
parties thereafter filed briefs in support of and in opposition to the petition, the last of which
was
received on September 3, 1997.

Having considered the matter and being fully advised in the premises, the
Commission makes
and issues the following

No. 28941-B

Page 2

No. 28941-B

ORDER

A. The Examiner's Findings of Fact, Conclusion of Law and Order are affirmed as
modified
below.

B. Examiner Findings of Fact 1-8 are affirmed.

C. Examiner Findings of Fact 9 and 10 are set aside.

D. Examiner Conclusion of Law is modified to read:

By failing to pay the full health insurance premiums during the
hiatus following the expiration of
the 1994-1996 contract, Respondent Washburn Public Schools modified the status quo as to
wages
and conditions of employment and thereby committed prohibited practices within the meaning
of
Secs. 111.70(3)(a)4 and 1, Stats.

Examiner Order is
affirmed.

Given under our hands and seal at the City of Madison, Wisconsin this 5th day of
June, 1998.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

James R. Meier, Chairperson

A. Henry Hempe, Commissioner

Paul A. Hahn, Commissioner

Page 3

No. 28941-B

Washburn Public Schools

MEMORANDUM
ACCOMPANYING

ORDER MODIFYING AND AFFIRMING
EXAMINER'S

FINDINGS OF FACT,CONCLUSION OF LAW
AND ORDER

The Pleadings

In its complaint, Complainant Chequamegon United Teachers allege
that Respondent
Washburn Public Schools violated Secs. 111.70(3)(a)1 and 4, Stats., by unilaterally
modifying the
status quo as to health insurance premium payments. Complainant asks that Respondent be
ordered
to make affected employes whole with interest and to post an appropriate notice.

In its answer, Respondent denies that it committed any prohibited practices and
alleges that
its actions were consistent with its status quo obligations. Respondent contends the complaint
is
frivolous and asks for dismissal of the complaint along with its costs and attorney's fees.

The Examiner's Decision

The Examiner concluded that Respondent failed to maintain the status
quo as to health
insurance premiums when it required employes represented by Complainant to make
premium
payments from September 1996 through January 1997. He therefore found that Respondent
had
thereby violated Secs. 111.70(3)(a)1 and 4, Stats., and ordered Respondent to make the
affected
employes whole with interest and to post a notice.

When analyzing the Respondent's status quo obligations as to health insurance
premiums, the
Examiner looked first to the language of the expired 1994-1996 contract and concluded that,
on its
face, the language could reasonably be interpreted as supporting either party's position in the
litigation. He further concluded that there was no bargaining history which would assist in
interpreting the expired contract language. However, when the evidence of past practice was
considered, the Examiner concluded that the Respondent was obligated to pay health
insurance
premium increases which occur during a contract hiatus. He stated:

The past practice, however, favors Complainant's position,
despite Respondent's best efforts.
This is not so much, in my view, because of the mere fact that in every hiatus period prior
to 1996,
the District had paid the insurance premium increase. The District has, with respect to 1994
in
particular, an extraneous reason for having desired to make that payment. I do not believe
that a
party which manifests good faith, by following through on a tentative agreement

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No. 28941-B

which has been turned down by its
opponent, should be penalized for doing so by a subsequent
interpretation of that agreement which fails to give any value to that party's action.

But the hiatus payment on July 1, 1992 is
more revealing. In that year, the District was, by
its own terms, the beneficiary of language newly negotiated in the prior collective bargaining
agreement, which referred to specific years for the first time. The substantive difference
between the
1990-92 contract and the 1994-96 contract was that in the earlier of those agreements, the
District
was obliged to pay up to a 22 percent increase during the second year, while in the most
recent
agreement it was obliged to pay "the full single and family premiums" for both years. But if
the
formulation of language in the 1994-96 agreement meant that the District had no obligation to
apply
the word "full" in the dynamic sense, i.e. as including an increase of any size which
occurred after
June 30, 1996, then it is inexplicable why the District would have felt it had any obligation
to pay any
increase, even one capped at 22 percent, which occurred after June 30, 1992. Yet pay it the
District
did.

I simply cannot follow the logic of
Respondent's argument that seeks to distinguish these two
events. Coupled with the fact that no communication was ever effectively made by the
District to the
Union to the effect that the District intended the facially ambiguous language first negotiated
in 1990
to relieve it from hiatus obligations to pick up increases in health insurance, and further
coupled with
the fact that there exists no previous instance in which the District had not
picked up the increase, I
conclude that the clear and consistent past practice of the District prior to 1996 was to pick
up such
increases. That being so, application of the Wisconsin Rapids principles leads me to
conclude that
the parties' 1994-96 collective bargaining agreement, on balance, is best interpreted as
providing for
continued full payment of health insurance during the subsequent hiatus. The District
accordingly
acted unilaterally and in violation of its obligation to bargain in good faith by its suspension
of such
payments three months later.

POSITIONS OF THE PARTIES

Respondent

Respondent contends the Examiner erred when he concluded that Respondent had
violated
Secs 111.70(3)(a) 1 and 4, Stats., by requiring employes to make health insurance premium
payments
during a contract hiatus. Respondent asks that the Examiner be reversed and that the
complaint be
dismissed.

Page 5

No. 28941-B

Respondent asserts the expired contract language clearly creates a status quo under
which
Respondent is not obligated to pay any health insurance premium increases during a contract
hiatus.
Respondent argues the Examiner erred when he found the language to be ambiguous and
failed to
give effect to the words "for the years 1994-95 and 1995-96."

Respondent alleges the Examiner also failed to properly evaluate the parties' past
practice.
Respondent contends the Examiner failed to limit his consideration of past practice to
situations
involving the same contract language as is present herein. Respondent further argues
that because the past practice relied on by the Examiner was not unequivocal, clearly
enunciated and
acted upon, and readily ascertainable over a reasonable period of time, use of that practice
was
inappropriate.

Lastly, Respondent contends the Examiner improperly concluded that evidence of
bargaining
history was of no assistance when interpreting the language of the expired contract.
Respondent
asserts the evidence of bargaining history, particularly the historical evolution of the contract
language dealing with payment of insurance premiums, is supportive of the Respondent's
view of its
status quo obligations.

Given all of the foregoing, the Respondent asks that the Examiner be reversed.

Complainant

Complainant asserts the expired contract language governing the outcome of this
dispute
unambiguously obligated the Respondent to pay the health insurance premium increases
during the
contract hiatus. Thus, although the Examiner ultimately reached the correct result,
Complainant
disagrees with the Examiner's assessment that the contract language is ambiguous.

Complainant argues that the Examiner correctly concluded that the parties' past
practice
supported a conclusion that the status quo required Respondent to make payment of the
increased
premiums. However, the Complainant asserts the Examiner improperly discounted portions
of the
parties' practice when reaching his conclusion.

Lastly, Complainant contends the Examiner properly concluded that evidence of
bargaining
history does not support the Respondent's position in this litigation. Complainant alleges that
when
properly evaluated, the parties' bargaining history is consistent with the Examiner's
conclusion that
Respondent's conduct violated Secs. 111.70(3)(a)1 and 4, Stats.

DISCUSSION

It is well settled that during a contract hiatus, absent a valid defense, a municipal
employer
violates Sec. 111.70(3)(a)4, Stats., if it takes unilateral action as to mandatory subjects of
bargaining
in a manner inconsistent with its rights under the dynamic status quo.

Here, the parties disagree as to whether the status quo obligated the Respondent to
pay the
increase in health insurance premiums which occurred during a portion of the contract hiatus
which
followed the expiration of the parties' 1994-1996 contract.

The record establishes that the first four collective bargaining agreements between
these
parties contained the following contract language:

The Board of Education shall contribute 100 percent for full
family or single hospitalization
insurance for the current year.

Upon the expiration of these four contracts, the parties' had successfully bargained a
successor agreement only once. During each of the three contract hiatuses which resulted
from the
parties' failure to timely bargain a successor agreement, the Respondent paid the increase in
health
insurance premiums which occurred.

1990-1992 Contract and The Hiatus Following its
Expiration

In the parties' fifth contract (1990-1992), the health insurance premium language
changed.
The Complainant's initial proposal sought deletion of the phrase "for the current year" from
the
contract language in the expired agreement. Respondent's initial offer sought to cap health
insurance
cost increases at 15 percent for each year of the contract. Ultimately, the parties reached
agreement
on the following language, which then appeared in the 1990-1992 contract.

The Board will pay the full single and family premiums for all
eligible employees for the 1990-91
year. For the 1991-92 year, the Board will pay the full single and family insurance premiums
up to
a twenty-two percent (22%) increase. However, if the premium increases more than
twenty-two
percent (22%), the excess above twenty-two percent (22%) shall be deducted from the
employee's
paycheck before taxes.

During the contract hiatus, which followed the expiration of the 1990-1992 contract,
the
Respondent paid the increase in premium which occurred on or about July 1, 1992.

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No. 28941-B

1992-1994 Contract and The Hiatus Following its
Expiration

Complainant's initial proposal for the parties' next contract (1992-1994) sought to
amend the
health insurance premium language to read:

The Board will pay the full single and family premiums for all
eligible employees.

Respondent's initial proposal stated:

For all eligible employees, the Board of Education shall contribute
up to $383.38 per month
toward the family health insurance plan premium and the full premium toward the single
health
insurance plan premium.

Ultimately, the parties agreed on 1992-1994 contract language which paralleled the
1990-1992 contract language in all respects except for updating the years covered by the
contract (i.e.
"1990-91" became "1992-93" and "1991-92" became "1993-94").

During the contract hiatus which followed the expiration of the 1992-1994 contract,
the
Respondent paid the increase in premium which occurred on or about July 1, 1994.

1994-1996 Contract and The Hiatus Following its
Expiration

Complainant's initial proposal for the 1994-1996 contract was identical to its initial
proposal
for the 1992-1994 contract.

Respondent's initial proposal stated:

The District shall pay the full premium for health insurance for all
employees who are regularly
scheduled to work 2,080 hours per year. For all other employees who are regularly
scheduled to work
at least twenty(20) hours per week, the District shall make a prorated contribution toward the
health
premiums based on the employee's regularly scheduled annual hours of work compared to
2,080
hours.

The parties ultimately reached agreement on contract language which stated:

The Board will pay the full single and family premiums for all
eligible employees for the years
1994-95 and 1995-96.

Page 8

No. 28941-B

For the first three months of the contract hiatus which followed the expiration of the
1994-1996 contract, the Board paid the premium increase which occurred on or about July 1,
1996. For
the next four months of the hiatus, the Respondent required the employes to pay said
premium
increase which action, in turn, prompted the Complainant to file the instant complaint.

Before determining whether the status quo did or did not obligate Respondent to pay
the
premium increase, it is worth noting that an employer cannot pick and choose when it will
honor the
status quo and when it will not. Put another way, if Respondent is correct that the status quo
did not
obligate it to pay the premium increases, then Respondent violated the status quo by paying
the
increase for the first three months of the hiatus. Even where the status quo is modified in a
manner
which benefits employes, Sec. 111.70(3)(a)4, Stats., is violated. Racine Unified School
District,
Dec. No. 28614-D (WERC, 1/98).

Turning to the merits of the parties' dispute, it is important to note at the outset that
the
parties have tended to litigate this case as if it were a grievance arbitration. Complainant
argues the
language of the expired agreement is clear and unambiguous and that , in effect, no further
analysis
is needed. Respondent asserts that evidence of past practice was improperly considered by
the
Examiner because it claims there was only one relevant hiatus period and that this single
episode
cannot constitute a practice.

As the Examiner understood, a status quo analysis is different than a grievance
arbitration
analysis. The language of the expired agreement, any practice, and any bargaining history
are all to
be considered when determining the parties' rights under the status quo. Saint Croix Falls
School
District, Dec. No. 27215-D, supra; City of Brookfield, supra; School District of Wisconsin
Rapids, supra; Village of Saukville, supra. When we review the language, the practice and
the
bargaining history, we conclude the Examiner was correct when he determined that the status
quo
required Respondent to make the disputed payments.

The practice of the parties is the decisive evidence in this dispute. If we had only the
language
of the expired agreement to consider, we could reasonably conclude that the use of specific
years in
the contract creates a status quo which freezes the Respondent's premium payment
obligations at a
monthly level no higher than that in effect when the contract expires. But we have more than
the
language to consider. The payment of the premium increases which occurred after the
expiration of
all three contracts with "specific year" health insurance premium language speaks far louder
regarding
the status quo than does the expired contract language on its face.

Respondent places much significance on removal of the word "current" from the
parties'
contracts effective with the 1990-1992 agreement and the substitution of the specific years
covered
by the contract. Yet upon the expiration of the first contract in which Respondent
accomplished the
removal and substitution (1990-1992), Respondent paid the contract hiatus premium increases
-- just
as it had done when the word "current" was in the contract.

Page 9

No. 28941-B

Respondent followed the same practice upon the expiration of the 1992-1994 contract.
The
Examiner concluded that this evidence of practice should not be held against Respondent
because the
action occurred in the context of Complainant's failure to ratify a tentative agreement. We
disagree.
Upon expiration of the 1992-1994 contract, Respondent was obligated to honor the status quo
until
the parties ratified a new contract. The existence of a tentative agreement did not extinguish
or alter
the Respondent's status quo obligation. Absent mutual agreement or necessity, it is a
violation of the
duty to bargain in good faith to modify the status quo to implement some or all of a tentative
agreement before ratification or receipt of an interest arbitrator's award. Sauk County, Dec.
No.
22552-B (WERC, 6/87). Here, there was no ratification, necessity or mutual agreement.
Thus, we
cannot honor Respondent's claim that it made the payments not out of a status quo obligation
but
instead as part of a good faith bargaining tactic of implementing a tentative agreement which
had been
rejected. Respondent's claimed justification for its conduct is illegal and cannot be credited.
Thus,
Respondent's payment of the hiatus health insurance premium increases following expiration
of the
1992-1994 contract is legitimately considered as part of a status quo analysis.

Even following the expiration of 1994-1996 agreement with its specific use of
"1994-95" and
1995-96," Respondent paid the hiatus health insurance increases for the first three months.
Respondent proffers no explanation as to why these payments were made if not to honor its
status
quo obligations. While Respondent ceased paying the increase with the fourth month of the
hiatus
(and prompted this complaint), we conclude that the payments during the first three months
are
properly viewed as evidence supportive of the result we reach herein.

Consideration of bargaining history, the third element of a status quo analysis, does
not
provide significant support for either party's position.

In the narrow sense of bargaining history, there is no conclusive evidence of any face
to face
dialogue between the parties regarding the alleged hiatus impact of any of their respective
proposals
or of changes in the health insurance premium language. However, it is worth noting that
even if
Respondent had advised Complainant that the use of specific years in the contract language
meant
an end to the payment of premium increases which occurred during any hiatus, such advice
would
not have been very credible in the face of Respondent's behavior to the contrary.

In the broader sense of bargaining history, the evolution of the parties' health
insurance
language generally reflects the parties' basic struggle over the allocation of health insurance
costs and
provides no significant insights as to the status quo. Respondent cites Complainant's
unsuccessful
efforts to eliminate any reference to "specific years" as signifying an understanding by
Complainant
that Respondent had no hiatus premium increase obligations. Complainant counters by
asserting that
it sought to eliminate the specific years to avoid having to propose that the specific years be
changed
each time the parties bargain a contract. Absent evidence of practice, the inferences
Respondent asks
us to draw are more plausible than those of Complainant. However, Respondent is again
haunted by
evidence of its practice. Respondent simply did not act in a manner consistent with the
bargaining
history inference it asks us to draw.

Page 10

No. 28941-B

Given all of the foregoing, our consideration of the language, the practice and the
bargaining
history causes us to conclude that the status quo obligated Respondent to continue to pay the
hiatus
premium increase in dispute. Therefore, we affirm the Examiner's conclusion that
Respondent's
failure to make these payments violated Secs. 111.70(3)(a)4 and 1, Stats., and his order that
affected
employes be made whole with interest and that an appropriate notice be posted. We have
modified
his Findings and Conclusion to more precisely reflect our view of the case.